ESTRADA MICHELLE DE LA ROCA v. TORTURE CLAIMS APPEAL BOARD / NON-REFOULEMENT CLAIMS PETITION OFFICE

HCAL278/2017

[2018] HKCFI 473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST No. 278 of 2017

Application for Leave to Apply for Judicial Review
NOTIFICATION of the Judge’s decision (Ord. 53 r. 3)

Following;

Leave to apply for Judicial Review refused.

Observations for the Applicant (Order by Deputy High Court Judge Woodcock):

1.  The applicant is a national of the Philippines who came to Hong Kong on 13 June 2012 as a visitor and was permitted to remain for 14 days.  On 15 May 2014 she surrendered to the police having overstayed.  On 22 May 2014 she was sentenced to a suspended term of imprisonment and on same day lodged a non-refoulement protection claim which was rejected by the Director of Immigration (“the Director”) on 15 June 2015 and 24 November 2016.  She lodged an appeal/petition to the Torture Claims Appeal Board (“TCAB”) which rejected her appeal on 21 April 2017.

2.  The applicant filed a notice of application for leave to apply for judicial review on 8 June 2017 and requested an oral hearing which was set down on 27 September 2017 and then adjourned to 27 November 2017.  The applicant appeared in person after her application for legal aid was refused.  The basis of her claim was that she would be harmed or killed by her husband if she returned to the Philippines.  Both the Director and the adjudicator of the TCAB set out her evidence and claim in detail in their decisions therefore, I only intend summarise it here.

3.  The applicant was born in 1985 in Batangas and is married with a son who lives in the Philippines with her husband.  She had 12 years of education and worked in a factory.  She met her husband in 2004, they married in 2006 and were happy until 2008 when their son was born.  In 2008, it became clear he had a girlfriend and their relationship deteriorated to the extent that he physically abused her.  He would slap her face and kick her until she bruised.  She never sought medical attention nor reported it to the police.  He refused to divorce her.

4.  In June 2012 he went on a business trip and she returned home to her parents in Batangas and told them of his abuse.  Whilst her husband was away a friend arranged for her to come to Hong Kong to avoid him.  Her husband did go to her parents’ home to search for her and threatened to kill her when he found her but he did not harm her family.  His family are wealthy and given their wealth, they could track her down where ever she relocated in the Philippines.  She would be unable to afford to bribe police officers to protect from him.

5.  She had left her son who is now eight with her parents in 2012 but her husband collected him in 2015 and took him to live with him and his new girlfriend.  The applicant has spoken to her son and he does not mind living with his father.  The applicant told the adjudicator that her husband no longer wishes to live with her.  She has since had another child in August 2017 born in Hong Kong.

6.  The adjudicator, as the Director, analysed the applicant’s claim under all applicable grounds;

(a)   risk of torture as defined in part VIIC of the Immigration Ordinance, Cap 115; the definition being the same as that found in Article 1 of the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment, (“torture risk”);

(b)   risk of torture or cruel, inhuman or degrading treatment or punishment (“CIDTP”) under Article 3 of section 8 of Hong Kong Bill of Rights Ordinance Cap 383 and Article 7, International Covenant on Civil and Political Rights (“ICCPR”) (“BOR 3 risk”);

(c)   risk of persecution by reference to the non-refoulement principal under Articles 33 and 1A(2) of the 1951 Convention relating to the status of Refugees and its 1967 Protocol (“persecution risk”); and

(d)   risk of a violation of the right to life under Article 2 of section 8 of the Hong Kong Bill of Rights Ordinance, Cap 383 and Article 6 ICCPR (“BOR 2 risk”).

7.  The adjudicator treated the appeal as a rehearing. He correctly set out the law and key legal principles for the four applicable grounds.  He set out the applicant’s claim and evidence as well as his careful consideration of it.  The adjudicator considered how likely she was to be subjected to the ill-treatment she fears and whether or not such ill-treatment would amount to those four applicable grounds.

8.  As far as the persecution risk was concerned, the applicant’s dispute was of a domestic nature and a private personal matter. There was no Convention reason involved; she did not have a well-founded fear of being persecuted on account of one or more of race, religion, nationality, membership of a particular social group or political opinion.  Her husband no longer wanted to reconcile with her.  The adjudicator found for these and several other reasons the applicant was not at real risk of persecution if refouled to the Philippines.

9.  With regard to a BOR 3 risk, there was no evidence she suffered any serious harm or serious injury and her past experiences did not amount to ill-treatment for the purposes of BOR 3.  The adjudicator found no substantial grounds for believing the applicant faced a genuine and substantial risk of being subjected to torture or CIDTP if she returns to the Philippines; her BOR 3 risk claim failed.  There was no risk of her being deprived of her rights under BOR 2; her BOR 2 risk claim failed.

10.  With regard to a torture risk, the adjudicator found her past experiences do not amount to torture as defined by section 37U of the Immigration Ordinance.  Nothing in her history suggested that the government had any interest in her nor did any person acting in any official capacity.  Her torture risk claim failed.  The adjudicator confirmed the decision of the Director.

11.  Even if the applicant had been able to show that she faced a real or genuine risk of harm, the adjudicator found that the risk was confined to the local area where her husband lived.  Her husband had no interest in their relationship any longer.  He was satisfied on the Country of Origin (“COI”) information that she could locate internally without undue hardship.

Leave to apply for judicial review

12.  I have considered, with rigourous examination and anxious scrutiny the papers and grounds of this application.  I find the adjudicator’s decision to be without fault.  He analysed material, claims and evidence carefully.  The applicant’s complaints against him and the procedure undertaken are not made out.  I find no substance in the grounds of this application.  In any event, what was in the supporting affirmation does not cover all the grounds set out nor are they substantiated.

13.  This application lists eight grounds of judicial review.  Many involve the adjudicator’s failure concerning COI material and information.  Those include grounds 1, 2 and 5.  Ground 3 criticises the adjudicator for failing to consider human rights violations and Ground 4 criticises him for failing to consider whether State protection exists in the Philippines.  Firstly, particulars have not been given in relation to each of these grounds and complaints.  Secondly, the adjudicator has made little reference to COI material.  Having found no evidence that the applicant would be personally at risk if refouled, there was no need for the adjudicator to consider human rights violations and State protection in the Philippines in any depth.

14.  Grounds 6, 7 and 8 also lack particulars.  There was never any basis for the adjudicator to call for psychological and psychiatric evaluation.  There were no complaints by the applicant nor any particulars given to the adjudicator that the assigned duty lawyer failed her previously.

15.  There were specific matters complained of in the affirmation and those include a delay in providing the applicant with the appeal bundle.  She says she was ill-prepared and confused during the appeal hearing. However, there is no complaint to the adjudicator recorded in the decision and I am sure if she had raised it with him, he would have dealt with it fairly.  There is no merit in this complaint.

16.  There was also a complaint the BOR 2 risk was not screened by the Director before it was determined by the adjudicator.  It is clear from the date of the Director’s Notice of Further Decision that he dealt with it before the date of the oral appeal hearing.  This complaint has no merit.

17.  The applicant did say in the oral hearing that she was afraid to return to the Philippines because she has had a child born in Hong Kong last year and she is worried her husband will threaten this child.  However, this is not a fact considered by the adjudicator in his decision‑making process.  It is not relevant to the application at hand.

18.  I do not find any ground that shows there was an error of law by the adjudicator.  I see no evidence of procedural unfairness nor a failure to adhere to a high standard of fairness. The substantive decision did satisfy the enhanced Wednesbury test; it was not Wednesbury unreasonable.

19.  In my judgement the applicant’s claim is not reasonably arguable.  There is no realistic prospect of success therefore, I refuse leave for judicial review.

Where leave to apply has been granted, Applicants and their legal advisers are reminded of their obligation to reconsider the merits of their application in the light of the Respondent’s evidence

Form CALL-1